Fair and Balanced: On Copyright and Fair Use

January 18, 2012

Near the start of How to Fix Copyright, William Patry discloses that he is the chief copyright lawyer at Google. He insists that his book represents his personal views, not those of his employer. Fair enough. But then he adds, “So please don’t preface any discussion of this book with: ‘Google’s Senior Copyright Counsel said,’ or any other variant.”

Reclaiming Fair UseHow to Put Balance Back in Copyright.
By Patricia Aufderheide and Peter Jaszi.Buy this book.

The trouble is that if Patry is Google’s senior copyright counsel and did write the book, it’s a matter of fact that “Google’s Senior Copyright Counsel said” what’s in it. To reveal a fact and then forbid inferences from it is to play mind games. Many might feel that Patry’s role at Google adds significance to his opinions on copyright; his publisher advertises his Google affiliation on the book’s back flap on that account. Patry’s vocation may also color his opinions about copyright. My vocation, for example, colors mine. As someone who makes his living as a writer, I feel a little protective of the legal basis of my income. Patry makes his living from a company that depends on using the copyrighted work of others—both with permission and without it, both within the traditional understanding of what’s legal and at its edges. Surely a reader is entitled to wonder about the relationship between Patry’s day job and his ideas.

The non sequitur I’m objecting to here is a small one. Unfortunately it’s representative; Patry’s reasoning is slipshod throughout the book, and more than once he tells the reader what to think instead of taking the trouble to convince him. Nor are these the only signs that the book may have been hurriedly—or just poorly—written. Patry often repeats himself. Though he seems to wish to address a broad audience, he uses legal terms of art such as “de minimis” and “worldwide exhaustion” without explaining them, and the later chapters sprint faster and faster through vagaries of international copyright law that are more and more complex. His priorities seem unsorted; he devotes a whole chapter to discrediting a 1995 article that consists only of notes in outline form and that by his own admission seems to have been little read. Nonetheless, if only because of Patry’s connection to Google, the ideas in his book will be taken seriously.

* * *

Patry believes that copyright laws have failed, and for evidence of the failure he begins by pointing to conflicts. Creators of copyrighted work have tussled with the distributors to whom they sell it. Record labels, for example, have been found guilty of withholding payments to musicians, and Patry recounts that in his capacity as a writer, he was recently forced against his will to sign away valuable rights in negotiations with a powerful online publisher. Creators have also been quarreling with their audiences, especially about pricing and access. Patry cites a recent dispute over Amazon’s Kindle: Amazon enabled the device to read books aloud in a mechanized voice, and the Authors Guild protested that the function would cut into sales of audio books. Amazon backed down—a matter for regret, in Patry’s opinion.

3

4

5

Moreover, Patry continues, copyright laws as currently written don’t do everything that has been claimed for them. They aren’t “the basis for creativity,” he asserts, and they “do not help the majority of authors and artists in making a living.” They don’t make a country’s economy more competitive, because the concept of productivity doesn’t apply to the arts, and because, in America, a small number of corporations own most copyrights. In addition, the laws have become obstacles to technological innovation. The consumers of the future, Patry believes, will want temporary access to works of art instead of ownership—they will want to stream rather than download—and Patry doesn’t think that the ephemeral, infinitesimal duplications that make streaming possible qualify as copies, even though some lawyers have tried to claim that they do. So dim is Patry’s view of copyright that he seems at times to doubt that it was ever a good idea. He suggests that when copyright was introduced in England in 1710, it had the effect of confining books to a luxury market. After 1774, when Britain’s House of Lords ruled that copyright couldn’t last in perpetuity, prices dropped and there was an explosion in the number of new titles published.

“The central purpose of copyright,” Patry writes, “has been to enable copyright owners to control markets, and in controlling them to make monopoly profits by selling fewer works for more money.” Patry doubts that talent is rare. Copyright, however, makes it possible for cultural gatekeepers to concoct an “artificial scarcity” of artwork in order to keep prices high. The result is as pernicious as “monetary inflation,” he believes. Now that the Internet has sidelined the old gatekeepers, though, “digital abundance” is starting to flourish. America’s copyright laws, some provisions of which were written as long ago as 1909, need to be adjusted to the new reality, preferably after reviewing them for their economic impact. Patry hopes that after reform, copyright will not be granted automatically, as it is now, but only when formally requested, and that the term of protection will vary according to medium and be much shorter than the current one, which is the creator’s life plus seventy years.

I have several objections to Patry’s arguments. Conflict, first of all, is no proof that a law has failed. People kill one another all the time, but no one suggests giving up on the law against murder. (The case of homicide law, by the way, also suggests that the age of a law is not necessarily an argument against it.) It’s only natural for creators, distributors and audiences to struggle. All three groups wish they had sole control over access to works of art; creators and distributors want to be paid as much as possible, and distributors and audiences want to pay as little as they can get away with. Whenever any one of the three gains the upper hand, bad behavior is to be expected. (As it happens, the dispute over the Kindle’s read-aloud function seems to have been between creators and a distributor, not between creators and the audience, as Patry suggests.)

GET A DIGITAL SUBSCRIPTION
FOR JUST $9.50!

Patry claims not to be debunking a straw man when he denies that “copyright is the basis for creativity.” Indeed, he found the claim, so phrased, in a European policy paper. But once he explains what he means by his debunking, it seems trivial. The authors of the phrase couldn’t have intended to claim that, say, Coleridge was inspired by a legal text rather than opium to write “Kubla Khan,” or that Wordsworth’s poems became better as poems by virtue of having been copyrighted. But Patry debunks copyright along exactly those lines. “Copyright’s actual role is more limited,” he writes; “it ensures that works once created and successful can be protected against free riding.” Well, yes; agreed. In a further attempt to snatch the laurels of cultural prestige from copyright’s brow, Patry notes that since 1903, when Oliver Wendell Holmes Jr. ruled that copyright applies even to a circus poster, much of what the law protects has been lowbrow, if not no-brow. “To say that copyright is designed to foster creativity,” Patry writes, “is to ignore that the vast majority of copyrighted works have no creativity in the popular sense.” In the popular sense, or in the elite sense? Patry looks down his nose, a few pages later, at movies that have been fashioned from comic books. But even if he is right—even if copyright is guilty of protecting works that are merely popular and not, properly speaking, creative (whatever that means)—its protection of the sort of artwork that Patry likes isn’t thereby nullified.

* * *

The more substantive apologia for copyright is about money, of course. But most artists, Patry notes, don’t have much financial success, and he accuses copyright of skewing the rewards toward superstars, away from the rank and file. The winner-take-all system encourages a roulette mentality in artists, who would be better served, Patry suggests, by government subsidies, tax breaks and arts funding in schools. “We would be better off if we spent less money on weapons systems that don’t work and more money on musicians who want to,” he writes. Lovely suggestions all, but none of them require weakening, shortening or abolishing copyright. A suspicious reader may wonder if Patry is pandering to his audience. Somewhat grudgingly, he does admit that copyright has brought money to artists. One doubts that Lady Gaga would ever have won a government subsidy for the music video for her song “Paparazzi.”

Patry would probably reply that he has no wish to divest Lady Gaga of her millions. Why, then, does he resist admitting that copyright is implicated in streaming? If you manage to enjoy in New York a musical performance stored on a hard drive in Palo Alto, a copy of it has crossed the country somehow. Why does Patry dismiss as “false” the idea that “intellectual property laws are necessary and sufficient to foster new works”? It can take years to write a novel or a history, and if it weren’t possible to sell the copyright in it, few but the rich, or those with rich patrons, would undertake to. Why does Patry theorize about artificial scarcity and monopoly profits? If creators have the right to a reward in the marketplace, then the audience will have to pay for it somehow. The trick is to strike the right balance. Patry, however, believes that “there is no balancing but instead only one side or the other prevailing.” His assault seems in excess of the reforms that he admits to wanting, and a suspicious reader may also wonder if Patry aspires to bring copyright itself into disrepute.

It seems true, and even obvious, that copyright protection is currently too long. As Patry points out, an artist gained vanishingly little in 1998 when the United States extended copyright from five decades beyond his death to seven, and before renewal was made automatic, copyright holders only bothered to renew about 15 percent of them. I agree with Patry that if we lived under the copyright laws of 1975, there would be far fewer orphan works (protected artworks whose copyright holders can’t be found), and librarians, historians and fans could more safely take charge of cultural preservation. On the other hand, if the economic bonus that the 1998 term extension gave to artists was small, the economic harm to the rest of us must also be. Probably no one would even have noticed it if Google’s book-digitization project hadn’t proved to be a way of sweeping up all the loose change that authors and their heirs seemed to have strewn about, almost (but not quite) as if they were no longer asserting a right of property in it.

The evidence Patry musters of book sales in eighteenth-century Britain is strong, if not absolutely conclusive (much was happening in Britain in the late eighteenth century, including the Industrial Revolution, and the outburst in literacy no doubt had a number of causes). But even if one grants a causal link, mightn’t the moral be that eternity is not a copyright duration that properly balances the interests of writers and readers? Patry’s rejection of the concept of balance seems unhelpful. As for the age of digital abundance, Patry argues, with the futurist gloating that has become conventional, that distributors who fail to lower their prices are doomed. But if capitalism is accomplishing change the old-fashioned way—by driving ill-adapted companies into bankruptcy—there’s not really any need to precipitate further change with legislation.

* * *

Moreover, now probably isn’t an opportune moment for blue-sky copyright reform, as the communications scholar Patricia Aufderheide and the intellectual property lawyer Peter Jaszi recognize in Reclaiming Fair Use, a pragmatic, lucid explanation of how to improve the balance in copyright laws. Were Congress to revisit the basics of copyright law anytime soon, Aufderheide and Jaszi fear, creators and audiences would lose even more to distributors, because the lobbyists of big media are so powerful. (Indeed, Congress has recently been giving serious consideration to a bill known as the Stop Online Piracy Act, which would give copyright holders a streamlined power to forbid payment processors, ad services and search engines from cooperating with websites accused of enabling piracy.)

Instead, Aufderheide and Jaszi propose taking advantage of fair use, which is, as they explain, “your right to use copyrighted material without permission or payment when you make a work.” Sometimes thought of as a “safety valve,” fair use was written into America’s copyright laws in 1976, using language that Justice Joseph Story had come up with in 1841. It’s thanks to fair use that I can liberally quote Patry and Aufderheide and Jaszi in this review without asking their permission or their publishers’. I can be critical, even vituperative, and my right to use their copyright-protected words remains unimpaired. In Story’s formulation, a judgment of fair use depends on four factors: the nature and purpose of the new use, the nature and purpose of the original work, the amount taken and the impact on the original creator’s income. No single factor is decisive, however, and in an influential 1990 law article, the federal trial judge Pierre Leval suggests that the key issue is the “transformative” nature of the new use. The new use, it is sometimes said, should be “orthogonal” to the original one. Following Leval’s lead, Aufderheide and Jaszi prefer to frame the matter in three questions:

§ Was the use of copyrighted material for a different purpose, rather than just reuse for the original purpose?

§ Was the amount of material taken appropriate to the purpose of the use?

§ Was it reasonable within the field or discipline it was made in?

In this review, for example, my purpose is to evaluate Patry’s and Aufderheide and Jaszi’s books, not merely to repeat their arguments so as to save you the cost of buying them. I need to quote in order to give you a flavor of their style and to convince you that I haven’t misrepresented them. Liberal quotation is an accepted practice in book reviewing; indeed, heavy-quoting reviewers are sometimes praised for giving readers of a review the chance to judge for themselves the author’s voice.

Fairly well-established fair uses, besides comment and critique, include illustration. In 2006, for example, a judge ruled that a publisher could reprint concert posters in a coffee-table book about the Grateful Dead without permission, because the reprints weren’t at full size and because the book put the posters in a new context: the band’s history. (As it happens, Patry represented the holder of the posters’ copyright.) Another established use is incidental capture. If a documentarian is filming children who, uncoached, happen to sing a line or two of “That’s Not My Name” by the Ting Tings, he isn’t obliged to license the song. But these aren’t the only kinds of fair use, nor are individuals the only fair users. I doubt that The Daily Show pays Fox News for the clips it lampoons. Aufderheide and Jaszi consider Google “the largest example of a company for which fair use is essential.” In 2003 a judge ruled that it’s fair for a search engine to publish thumbnail-size versions of images that it’s indexing, and Google originally planned to defend as fair use its scanning of in-copyright books and its publishing of snippets from them after it was sued by the Authors Guild and the Association of American Publishers in 2005. Because Google and its opponents decided to negotiate an ambitious private settlement, the case still hasn’t gone to trial. But as law professor Pamela Samuelson notes in an April 2011 article published in the Columbia Journal of Law and the Arts, most observers think that on the limited question of fair use Google should, and probably would, prevail.

* * *

Not every change rises to the level of a transformation. A coffee mug serves a different purpose from a cartoon, but if you put a copyright-protected cartoon character on a mug and sell it, the courts will not view it kindly, because the mug’s appeal would depend almost entirely on that of the original cartoon. Nor does fair use exempt a borrower from the courtesy of attribution. In fact, if you feel like you’re getting away with something, Aufderheide and Jaszi suggest, you’re probably doing it wrong. Their populist message is that fair use is a matter of common sense, and that if a borrower engages in the Rawlsian thought experiment of imagining how she would want to be treated if she were the one borrowed from, she will probably get it right. It isn’t always easy to detect when one’s judgment has been clouded by wishful thinking, though, and in their zeal Aufderheide and Jaszi may underestimate how hard it is for laypeople to figure out the basics of fair use. I also worry about their eagerness to move beyond the traditional analysis by four factors. Aufderheide and Jaszi’s three questions are easier to grasp, but judges are creatures of precedent.

Fair-use it or lose it, Aufderheide and Jaszi advise. “Like a muscle, [the right] can shrink with disuse.” They recommend that communities of users convene to decide on the best practices for fair use in their medium. Judges, they’ve noticed, pay attention to community norms, and an open, public discussion is more likely to persuade behind-the-scenes decision-makers like insurance companies, who err on the side of caution where the law is concerned. Not long after documentary filmmakers released a code of best practices in 2005, errors and omissions insurers began offering routine coverage for fair-use claims in documentaries. Aufderheide and Jaszi report that there are now fair-use codes for poetry, online video, dance, media-studies publishing and curriculum sharing.

Without any help from legislators, fair use seems to have grown stronger over the past couple of decades. In particular, courts have grown more accepting of the idea that a use may be fair even if it makes money for the borrower. The pop-conceptual artist Jeff Koons lost a 1992 case over an expensive sculpture based on an unlicensed photo of puppies, despite arguing that he was making a comment about banality; but he won a 2006 case over an expensive mural that used parts of a fashion photo, in part by arguing that he was making a comment about mass media. The progress isn’t universal, though. If a reviewer is allowed to quote whole paragraphs from a book, and if Stephen Colbert can play clips from Fox News, how come a musician can’t sample even a note from another musician’s recording without licensing it? Aufderheide and Jaszi suggest that a musician should be able to, and they see sampling as a cautionary tale, showing what happens when a community fails to defend fair use.

After a 1991 preliminary injunction against the rapper Biz Markie quoted the biblical commandment against theft, nervous record labels began insisting that all samples be licensed. (The case never went to trial, but a fair-use defense might not have prevailed; the rapper’s borrowing was pronounced.) In 2005, after the group NWA borrowed three notes from a George Clinton song, an appeals court ruled that there was no such thing as an excerpt of a recorded performance so short that it didn’t have copyright protection but advised the lower court to consider whether the borrowing was fair use. Again the parties settled out of court. By the time another George Clinton case reached the courts in 2009, an appeals judge noted that even though the borrowing looked “transformative” to her, she was reluctant to upset the market in music-sample licenses that had developed over the years. In Aufderheide and Jaszi’s view, a failure to defend fair use had given rise to a new reason to oppose it, and they call the result “a disturbing, vicious circle.” I suspect, though, that Aufderheide and Jaszi may be misreading the 2009 decision. In context, the judge, in using the word “transformative,” seems only to have meant that the new song didn’t sound much like the George Clinton original. She went on to say that the new song had borrowed “the most distinctive and recognizable elements” of the original, and she professed herself unconvinced by the borrowers’ claim that the purpose of their song was to offer a homage to Clinton. Indeed, the reason courts have rarely, if ever, recognized fair use in sampling may simply be that the purpose of one song, broadly considered, never differs much from the purpose of another.

Aufderheide and Jaszi decry the romantic excesses of copyright anarchists. A radical rewrite of copyright law is unlikely in today’s political climate, they argue, and they believe that a number of artists who have been acclaimed as copyright rebels are merely exercising rights of fair use. For example, Tom Forsythe, an artist who photographed a Barbie doll in a blender, not only prevailed in court when Mattel sued but was awarded $1.8 million to cover his legal fees. Nonetheless, copyright radicals have described Forsythe’s case as “a cause for alarm,” Aufderheide and Jaszi write. In their opinion it’s a false alarm, and pundits who frame copyright in terms of martyr-rebels versus persecutor-oppressors run the risk of weakening fair use by conveying the impression that it’s more dangerous than it really is. Aufderheide and Jaszi regret that the Digital Millennium Copyright Act of 1998 made it illegal to break encryption technology, thereby outlawing the fair use of encrypted works, but their advice is to challenge the ban by petitioning the Copyright Office for exemptions at hearings that are held once every three years.

The remedy will strike some as insufficiently revolutionary, but in its way it’s hardheaded. Aufderheide and Jaszi end with a couple of cautions: they warn that fair use is an American right, available in very few jurisdictions abroad, and they worry about people clicking away their fair-use rights as they scroll through the fine print on websites. In their zeal, the authors may be a little too sunny-minded about the risk that fair users run of misunderstanding the concept—or of understanding it correctly and being hit with a nuisance lawsuit anyway. But their insight into the way courts and politicians follow social norms, and the way engaged citizens can shape those norms, is canny, and one can forgive a little evangelism in copyright thinkers who have managed, despite the times, to find good news.